[License-review] [Non-DoD Source] Re: NOSA 2.0 and Government licensing [was: moving to an issue tracker [was Re: Some notes for license submitters]]

[Karan, Cem F CIV USARMY RDECOM ARL (US)]

> -----Original Message-----
> From: License-review [mailto:license-review-bounces at lists.opensource.org] On Behalf Of Bruce Perens
> Sent: Wednesday, June 20, 2018 11:02 AM
> To: License submissions for OSI review <license-review at lists.opensource.org>
> Subject: [Non-DoD Source] Re: [License-review] NOSA 2.0 and Government licensing [was: moving to an issue tracker [was Re: Some
> notes for license submitters]]
> 
> On Wed, Jun 20, 2018 at 6:07 AM, Karan, Cem F CIV USARMY RDECOM ARL (US) <cem.f.karan.civ at mail.mil < Caution-
> mailto:cem.f.karan.civ at mail.mil > > wrote:
> 
> 
> 
> 	In terms of the NOSA 2.0 license, the goal is to support the OSD despite not having copyright attached to most US government
> works within US jurisdiction.
> 
> 
> Simply having the software be in the public domain and available in source-code form is sufficient to comply with the OSD, if you don't
> attempt to add contractual terms.

No, it doesn't.  Public domain covers copyright, but it doesn't cover patent and other intellectual property rights.  Downstream users should be confident that the USG has given them the rights to reuse the material that we're giving them.

Moreover, when others give the USG material to incorporate into USG projects, the USG needs to be confident that it has the rights to incorporate and redistribute the material.  This can be a truly serious problem if a patent troll gave the USG material, and then decided to sue both the USG and all downstream users for using the material without a license.  

Finally, there is still the issue of warranty and liability, which doesn't go away just because you put something in the public domain.  As an example, if I put a dangerously poorly made piece of equipment on a public playground I'm responsible for it if someone gets hurt, even if I donated it to the public domain.

> 
> 	would OSI (or anyone else) be willing to indemnify the US Government, and all downstream users, against any OSI-approved
> license being declared fully null and void solely because the license had copyright clauses in it that were declared invalid because the
> covered work didn't have copyright attached?
> 
> 
> What would we be indemnifying the US Government for? A good many of us are U.S. citizens and the software is our property. The
> horse is already out of the barn in that copyright law doesn't protect it. NASA has seen fit to discard its trade-secret protection and any
> protection applicable to government secrets. Having discarded these things, there is no obligation transmissible from the first licensee
> to the second.
> 
> The solution for public-domain material is to simply leave it in the public domain.

Once again, you're missing the point.  There are two groups here, the USG, and private citizens.  The USG doesn't allow itself copyright within the US, but it can get patents and trademarks on material.  Downstream users need to be certain that the USG is licensing the rights to the downstream users so that they can use the material.  Moreover, the USG's position is that USG materials CAN be copyrighted outside of the US; how are individuals outside of the US going to be sure that they are legally using the material the USG supplies unless there is a license to it?  That is one of the basic purposes of any good license, to give the end user the rights necessary to use the material.   And as I mentioned earlier, the USG is interested in collaborative development, which means that it needs to be sure that it has the rights necessary to accept, incorporate, and redistribute the material it has been given; that means that it needs a good license that will stand up in court.  That is what NOSA 2.0 is supposed to be; a solid license that ensures that everyone (the USG and downstream users) will keep their rights.  Just putting it all in the public domain won't do that.


Thanks,
Cem Karan

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Other than quoted laws, regulations or officially published policies, the views expressed herein are not intended to be used as an authoritative state of the law nor do they reflect official positions of the U.S. Army, Department of Defense or U.S. Government.